General damages awarded by human rights tribunals are intended to compensate for discrimination and to act as a deterrent.

The Alberta Human Rights Act provides no statutory limit on how much general damages can be awarded. However, in the past general damages awarded by the Human Rights Tribunal of Alberta (the “Tribunal”) generally ranged from $3,000 to a top end “cap” of $10,000.

This has changed since the Alberta Court of Appeal decision in 2013 of Walsh v. Mobil Oil Canada. In Walsh, the court stressed that inadequate damage awards undermined the mandate of human rights legislation to recognize and affirm that all persons are equal, and to protect against and compensate for discrimination. The court concluded that low damage awards could actually perpetuate discriminatory conduct.

Beginning in 2015 there has been a notable trend towards higher general damages awards, and the Tribunal has issued a number of decisions awarding general damages in the range of $10,000 to $15,000.

In Amir and Nazar v. Webber Academy Foundation the Tribunal found that it was not undue hardship to allow Muslim students to pray during the school day in a secular private school, and awarded general damages of $12,000 and $14,000 to each complainant.

Similarly, in Andric v. 585105 Alberta Ltd. o/a Spasation Salon & Day Spa, the Tribunal found that the employer had unjustifiably changed the complainant’s position and work location of 10 years after she was assaulted by a co-worker. The Tribunal concluded that the shared religious beliefs between the co-worker who assaulted the complainant and the employer were a factor in the respondent’s decision to transfer the complainant. The complainant was awarded general damages of $15,000 and lost wages for a 24 month period.

More recently, on July 5, 2016 the Tribunal issued its decision in Thu Hien Pham v. Vu’s Enterprise Ltd. o/a La Prep, which continued this trend of higher general damage awards. The complainant, Ms. Pham was awarded $15,000 in general damages by the Tribunal, who found that Ms. Pham had been harassed by her former employer. On awarding $15,000 in general damages, the Tribunal chair noted that “it was important to ensure that damages are not so low as to trivialize the protection of human rights”, and “[w]hile I may have been inclined to consider a greater amount…this was the amount requested by the Director and the complainant”.

Accordingly, employers can expect to see larger awards in the future for both general damages and loss of income, and should not discount the risks and exposure of a human rights complaint.

These decisions of the Human Rights Tribunal of Alberta can be found here:

Both the British Columbia and the Federal Government have recently introduced legislation to amend their respective human rights legislation to include gender identity and gender expression among the protected grounds of discrimination. These amendments will mean that individuals will have a right under the respective legislation to make a complaint if they have been discriminated against because of their gender identity or expression, including in employment settings.

Federally regulated employers and employers in British Columbia should review and update their policies on non-discrimination to ensure that these two new prohibited grounds of discrimination are covered.

British Columbia’s Human Rights Code Amendment Act, 2016, S.B.C. 2016, c.26 was passed on July 25, 2016 and came into force on July 28, 2016 whereas the Federal Bill C-16 passed first reading in the House of Commons on May 17, 2016 and has yet to become law.

Technological developments and the need for employers to monitor employees’ activities and to minimize accidents and hazards require constant adjustments in order to respect the right to privacy. While it may be tempting for employers to replace old surveillance methods with new technologies capable of watching their personnel’s every move, the inclination to use easier and more reliable ways of supervising employees must nonetheless not violate employees’ right to privacy, which, while being more limited in a work context, nevertheless exists.

In a recent Quebec arbitration ruling, Sysco, a food delivery company, had decided to install a DriveCam® safety program inside the drivers’ cabins of its trucks in Quebec. The Union disagreed with the introduction of this new surveillance measure and filed a grievance to have said cameras removed, alleging that they were not only violating the truck drivers’ rights to privacy and dignity, but that they were also leading to unfair and unreasonable working conditions. In addition, the Union claimed that Sysco had failed to establish serious motives which would justify its resort to the use of such invasive surveillance, especially considering the existence of a no‑fault system in Quebec. On its end, Sysco claimed that it was justified to install the cameras as they were meant to (i) be used as a training tool for the drivers, (ii) increase and encourage safe driving and (iii) assist with liability determination or exoneration in case of accident.

In ruling that Sysco was not justified in installing those cameras and ordering that they be removed, the Arbitrator used a two-fold analysis. First, did Sysco have a specific problem that needed to be addressed with these cameras? Second, were these cameras the only way to fix the alleged problem, or was there a less intrusive way to achieve similar results?

On the first part of the analysis, the Arbitrator found that Sysco had failed to establish that it had an existing problematic situation that needed to be fixed. The employer’s concern for prevention regarding safe driving and liability determination or exoneration did not constitute strong motives for which the surveillance would be warranted. Considerable risks revealing an existing problem would have been enough to establish the presence of a problem, but Sysco had not established such a problem. For example, a widespread problem having to do with alcohol or drug consumption during working hours would have constituted a great risk in the matter of safe driving.

With respect to the second aspect of the analysis, Sysco’s concern could easily have been addressed by other less intrusive means, such as training, random safety spot-checks, or cameras installed outside of the trucks rather than inside the cabins. In fact, cameras constantly filming the drivers inside the trucks’ cabins had even proven to be distracting for the drivers, thus potentially creating a greater risk from a safety perspective.

Employers who may be tempted to install such surveillance systems on their fleet will need to remember that any such violation of their employees’ right to privacy will only be justified by identifying an existing specific problem that cannot be fixed by a less intrusive means than the surveillance system the employer wishes to install.

Not surprisingly, the Hamilton-Wentworth District School Board (“the “Board”) decided to appeal the Divisional Court’s decision and late last month, the Ontario Court of Appeal rendered its own decision on the same matter. In doing so, it agreed with the Divisional Court on virtually every point, thereby upholding the astounding 2013 decision of the Human Rights Tribunal for 10 years of back pay, as well as employee reinstatement a decade after termination.

In summary, Ms. Fair was an employee with the Board who was on disability leave for about 3 years prior to being terminated. At the time of termination she had sought a return to work but the employer refused to accommodate her into another position. The standard of review on an appeal such as that before the Court of Appeal is one of “reasonableness” – namely, was the Tribunal’s decision reasonable? Under that test, the Ontario Court of Appeal unanimously determined that the Human Rights Tribunal’s decision was reasonable with regard to the facts and law before it.

Although no new law was made by the Ontario Court of Appeal, it did reaffirm the law in areas that employers should pay particular heed to. First, the Court confirmed that in order for an employer to fulfil its duty to accommodate an employee’s disability, the employer may be required in an appropriate case to place the disabled employee into a position for which he or she is qualified but not necessarily the most qualified. Second, the Court confirmed that the passage of years is not determinative of whether reinstatement is an appropriate remedy; rather, context is key. In this case, the evidence was that Ms. Fair’s relationship with the Board had not been fractured and the passage of time had not materially affected her capabilities, both of which led to the conclusion that reinstatement after a decade was not unreasonable.

Employers would do well to keep in mind the inherent uncertainties of litigation, the fact that the Human Rights Tribunal can order reinstatement, and the fact that a complaint which moves slowly through the system can ultimately increase the bottom line for an unsuccessful employer. While not every case should necessarily be settled, Hamilton-Wentworth District School Board v. Fair is a good example of a case which became far more costly to the employer due to the passage of time.

In a recent interim decision of the Ontario Human Rights Tribunal, adjudicator Jennifer Scott found that miscarriage could constitute a “disability”. The door was also left open for employees terminated due to miscarriage to claim discrimination due to sex.

In the case of Mou v. MHPM Project Leaders, Mou was off work for approximately 3 weeks in January 2013 due to injuries sustained from a slip and fall accident. She subsequently suffered a miscarriage in June of the same year and was off work for 2 days. Her employment was terminated in February 2014 and Mou alleged that the termination related to her absences from work. In February of 2016, a hearing took place to determine the threshold issue of whether Mou had established that she suffered from a disability.

The employer argued that in order for an illness or injury to constitute a disability, there must be some aspect of permanence or persistence to the condition. In short, the employer argued that Mou’s health issues were temporary in nature and that Mou fully recovered from them prior to her termination. Adjudicator Scott felt otherwise. In coming to her decision she noted that while normal ailments such as a cold or flu are transitory, a miscarriage is not a common ailment and is not transitory. In reaching that conclusion, Adjudicator Scott made reference to the fact that Mou continued to feel “significant emotional distress from the miscarriage” to the date of the hearing.

No mention is made in the decision as to whether any expert evidence was adduced by the employer with respect to whether miscarriage is a common ailment and it is suspected that no such evidence was provided. One wonders whether the decision might have been different if the adjudicator had heard evidence to the effect that at least 1 in every 4 pregnancies is believed to end in miscarriage, or that a majority of women have at least one miscarriage during their childbearing years. While there is no doubt that miscarriage can lead to emotional distress and even physical problems, it is possible that had this expert evidence been provided, it might have affected the adjudicator’s conclusion that miscarriage is not a common ailment.

Separate and apart from the issue of the miscarriage, it is clear from the decision that Mou’s slip and fall injuries also constituted a disability as they took approximately 3 weeks to heal. Just as importantly, Adjudicator Scott made note of the fact that the employer invited Mou to apply for short-term disability coverage after her slip and fall, which is presumed to have been an indication that the employer believed her to be disabled.

It is important to note that although the Tribunal concluded that a miscarriage can constitute a disability, there has not yet been a final hearing in this case and no determination has been made as to whether Mou’s disability was a factor in her employer’s decision to terminate employment.

Employers who undertake reductions in force due to financial difficulties should not count on employee notice periods being reduced as a result of the financial troubles. This point was recently emphasized by the Ontario Court of Appeal in the decision of Michela v. St. Thomas of Villanova Catholic School.

Michela, Gomes and Carnovale were long-term teachers at St. Thomas of Villanova Catholic School, with 11, 13 and 8 years of service respectively. All worked under a series of one-year contracts. In May of 2013, the employer advised each of them in writing that they would not receive a contract renewal for the coming year because enrolment was expected to be lower. Subsequently, in June of 2013 each of them was provided with a termination letter and advised that notice was not owed because they were employed pursuant to fixed-term contracts.

The claims were dealt with by summary judgment, and the motions judge determined that due to the succession of fixed-term contracts, the employees were really indefinite term employees and entitled to common law notice of termination. However in determining that the reasonable notice period for each employee should be 6 months rather than the 12 months which was claimed, the judge made reference to the employer’s poor financial position.
In overturning the decision, the Court of Appeal made reference to the Bardal factors used to calculate reasonable notice at common law: the employee’s character of employment, length of service, age, and availability of similar employment having regard to experience, training and qualifications. The Court found that the motions judge had mistakenly viewed “character of employment” through the lens of the employer rather than the employees, and stated that the financial position of the employer does not factor into the calculation of reasonable notice. The court confirmed that while an employer’s financial position may be the reason for a termination without cause, the financial position of the employer does not justify a reduction in the notice period in bad times nor an increase when times are good.

For employers considering reductions in force during difficult times, it may be best to consider other options such as a temporary layoffs, ensuring that proper termination provisions are in place which provide only statutory minimums in the event of termination, or the provision of working notice. While legal advice should be sought in order to ensure the best plan of action, it is clear at the very least that employers should not count on a reduced notice period due to a difficult financial position.

Until recently, the Human Rights Tribunal of Ontario (the “Tribunal”) would deliver a Human Rights Application to whomever the Applicant listed as the Employer’s contact person. That person, possibly the Applicant’s supervisor or manager, was often not the appropriate person to deal with the Application on behalf of the Employer, leading to delays in the Employer’s ability to respond to the Application.

The Tribunal has taken steps to remedy this problem in its “Practice Direction on Establishing a Regular Contact Person for an Organization”. The new Practice Direction, effective as of November 2015, allows organizations to designate a regular contact person for the delivery of Human Rights Applications. Where such a person has been designated, the Tribunal will rely on that person as the contact for Human Rights Applications, regardless of which person is named as the organizational contact in the Application itself.

If an organization wants to establish a regular contact for the organization, all the organization has to do is send the following information to the Tribunal Registrar:

Name and position of the person making the request;

The name and contact information of the contact person, including email address if available; and

A request that the Tribunal use the named contact person as the organization’s contact in any applications filed with the Tribunal naming the organization.

Should the contact person for the organization change, the organization would be required to contact the Registrar, designate a new contact person and provide his/her contact information.

An organization’s representative is to be distinguished from a personal respondent. Where individuals are named as personal respondents in Human Rights Applications, they will continue to be treated as parties and served separately from the organization.

In 2013 the British Columbia Human Rights Tribunal found that the University of British Columbia had discriminated against Dr. Carl Kelly when it dismissed him from its Family Medicine Residency Program. Dr. Kelly was awarded damages, including, significantly, $75,000 for injury to dignity, feelings and self-respect. At the time, the high water-mark for this head of damages was $35,000; this had been the result of relatively incremental increases to damages for injury to dignity over time. The award to Dr. Kelly exceeded this threshold by $40,000.

In the case of Dr. Kelly, the Tribunal held that the circumstances were such that a substantial award was appropriate, relying in part on Dr. Kelly’s life-long dream to be a physician and the humiliation and isolation from his family and friends he experienced as a result of his dismissal.

The University sought Judicial Review of the Tribunal’s decision on both the finding of discrimination and the damages awarded. In particular, the University argued that the Tribunal had put undue emphasis on the fact that Dr. Kelly was a medical resident, and that the award of $75,000 created a bifurcated approach to injury to dignity: one for professionals and one for other employees.

On September 24, 2015, the Court did not interfere with the Tribunal’s findings on the merits, but overturned the award of $75,000 on the basis that it was patently unreasonable.

Mr. Justice Silverman found that the award of $75,000 for injury to dignity put undue emphasis on the fact that Dr. Kelly was engaged in medical training and was denied access to his chosen profession. The Court held that in doing so, the Tribunal was elevating damage awards for complainants in professional occupations relative to other categories of employment. Disagreeing with the Tribunal’s finding that Dr. Kelly’s context was inherently unique, the Court held that the Tribunal’s award was patently unreasonable because there was no principled reason why this particular complainant’s circumstances warranted more than doubling the previous highest award.

Importantly, the Court did not comment on what would have been a reasonable award in the circumstances; rather, it remitted the decision back to the Tribunal for reconsideration. It therefore remains open to the Tribunal to grant Dr. Kelly an award for injury to dignity in excess of $35,000, ensuring this case will continue to attract considerable attention.

In Taylor-Baptiste v. Ontario Public Service Employees Union, the Ontario Court of Appeal was faced with the question of whether sexist and offensive posts on a blog created by a union member to discuss workplace issues amounted to discrimination “with respect to employment” contrary to s. 5(1) of the Human Rights Code (the “Code”).

The appellant, Mariann Taylor-Baptiste and the individual respondent, Jeff Dvorak, both worked at the Toronto Jail. Ms. Taylor-Baptiste was Mr. Dvorak’s manager, and Mr. Dvorak was the president of the jail’s local branch of the respondent union, the Ontario Public Service Employees Union (“OPSEU”). Mr. Dvorak operated a blog about union matters. During a period of labour unrest in early 2009, Mr. Dvorak authored a blog post, and approved the posting of a comment written by another worker, that accused Ms. Taylor-Baptiste of, among other things, nepotism (suggesting she only obtained her position because of her relationship with her boyfriend) and incompetence. Ms. Taylor-Baptiste brought an application to the Human Rights Tribunal (the “Tribunal”), alleging discrimination “with respect to employment” contrary to s. 5(1) of the Code and harassment “in the workplace” contrary to s. 5(2) of the Code.

The Tribunal found that although postings on blogs can form part of or an extension of the workplace and the postings were sexist and offensive, these particular blog posts did not amount to harassment “in the workplace” contrary to s. 5(2) of the Code. This finding was not challenged on appeal to the Court of Appeal. With respect to the allegation of discrimination “with respect to employment”, the Tribunal considered that the comments were made by Mr. Dvorak “in the course of his duties as a … union president”, and therefore his comments enjoyed the protection of the rights of freedom of expression and freedom of association guaranteed by ss. 2(b) and (d) of the Canadian Charter of Rights and Freedom (the “Charter”). As a result, the Tribunal found that the blog posts did not contravene either section of the Code. At the request of Ms. Taylor-Baptiste, the Tribunal reconsidered its decision and upheld the initial decision.

Ms. Taylor-Baptiste appealed to the Court of Appeal. The Court of Appeal considered whether the Divisional Court properly applied the reasonableness standard to the Tribunal’s decision that the blog posts did not infringe her right to equal treatment “with respect to employment” without discrimination under s. 5(1) of the Code.

The Court of Appeal found that the Tribunal was entitled to take into account Charter values within its scope of expertise, and that interpreting the meaning of the words “with respect to employment” in s. 5(1) of the Code fell within the very core of the Tribunal’s expertise. The Court of Appeal also found that the Tribunal properly identified freedom of expression and freedom of association as relevant Charter rights in regard to the circumstances of this case. Section 2(b) of the Charter (freedom of expression) protects a broad range of expressive activity, including “distasteful” expression, so long as it does not reach the point of violent expression or is not, for example, hate speech. Freedom of association, on the other hand, was relevant because the blog posts dealt with union-management relations and were related to union issues, notwithstanding the sexist language. [In fact, the Supreme Court has held that expressive activity in the labour context is directly related to the Charter-protected right of workers to associate to further workplace goals under s. 2(d) of the Charter.]

The Court of Appeal then considered whether the Tribunal properly balanced the relevant Charter values with the objective of the Code. The Court of Appeal found that the Tribunal appropriately balanced the statutory objective of protecting of Ms. Taylor-Baptiste from a poisoned work environment against the Charter rights of freedom of expression and freedom of association. Based on the foregoing reasons, the Court of Appeal concluded that the Tribunal’s decision was reasonable, and upheld the dismissal of Ms. Taylor-Baptiste’s Application.

The implications of this decision remain to be seen, but it is important to note that the Court of Appeal was careful to state that its decision applied only to the facts at hand, and that it was not creating a “blanket exemption” protecting all forms of union speech from the requirements of s. 5 of the Code.

The decision in H.T. v ES Holdings Inc. o/a Country Herbs (“Country Herbs”) 2015 HRTO 1067 (CanLII) (“Country Herbs”) serves as a reminder to employers of the significant liability that they face when a claim of discrimination is made out.

H.T. and J.T. were hired when they were 16 and 14 respectively. The undisputed evidence was that their mother, S.T., had advised the employer early on in H.T.’s employment that she could not work later than 9:30 or 10:00 p.m., to which the employer agreed. H.T. notified the employer twice that she was a Mennonite, and that she was unable to work on Himmilfaurt, which was a Mennonite religious holiday. H.T. was told that the attendance policy required that she come in at midnight on the holiday to complete her work if she did not work her scheduled daytime shift. H.T. declined the midnight shift, on the basis that she had already advised the employer that she could not work past 10:00 p.m. J.T. was not scheduled to work that day, so J.T. had no issue. While the applicants were at church, the employer called S.T. and, upon being told again that H.T. would not be working that day or at midnight, terminated both S.T.’s and J.T.’s employment.

Ultimately, the Adjudicator found that J.T. was fired “because of his association with his sister who had asserted her right not to work on the holiday, and with whom he shares the same religion”.

In terms of H.T., the Adjudicator found that the policy was discriminatory and there was a prima facie case of adverse treatment. Although the Adjudicator was satisfied that that the employer had adopted the attendance policy for a purpose rationally connected to the performance of the job and in an honest and good faith belief that it was necessary to the fulfilment of the legitimate work-related purpose, ultimately she held that the employer had not considered the procedural duty to accommodate; based on the evidence, the employer had not engaged in a discussion of how to accommodate H.T. after she twice raised the issue of not working on the holiday. Moreover, “with respect to the substantive duty to accommodate, the only alternative offered was for H.T. to work at midnight. Given her particular circumstances and the agreement of the employer that H.T. would not work past 10 p.m. because of her age, this was not a reasonable attempt to accommodate her”.

In contrast with an allegation of discrimination, a reprisal claim requires the applicant demonstrate that the respondent purposefully punished or retaliated against the applicant. The Adjudicator concluded that the reprisal complaint was made out, because the employer discussed with the applicants that they could be fired for not working on the holiday and gave evidence that they were terminated so that others would not disregard the attendance policy.

The HRTO awarded the following:

that the employer pay lost wages of one month to H.T. and five months to J.T., who had both mitigated by seeking work after their termination;

that the respondents (both the employer and the directing minds of the employer) pay damages for injury to dignity, feelings, and self-respect, in the case of H.T. the sum of $10,000, and J.T. the sum of $7,500;

that the respondents implement an internal Human Rights policy, specifically including a prohibition on discrimination on the bases of creed or association;

that the respondents undergo the Ontario Human Rights Commission’s online training “Human Rights 101”, and provide written confirmation to the applicants; and

that the employer post Code cards in central locations throughout their workplace, including any place where staff gathers for breaks or meetings, to encourage future Code compliance.

This decision underscores the importance of compliance with the Code, as well as the gravity of discrimination on the above-noted prohibited grounds. Employers are well-advised to ensure they implement policies that accommodate their employees to the point of undue hardship, from both a substantive and procedural standpoint, or risk significant monetary penalties and the involvement of the HRTO in their workplace.

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